Monday, November 7, 2011

A potentially innocent man has been sent to prison on rape charges, possibly for life

In State of Washington v. Perez-Valdez, 2011 Wash. LEXIS 820 (2011), the Supreme Court of Washington (Justice Susan Owens writing for the majority) recently affirmed a decision that sent a man to prison for many years, possibly for life, for allegedly raping two girls he and his wife adopted.

This case is very troubling for the reasons described in the dissenting opinion, written by Justice Charles K. Wiggins: “The State's case was weak; it was based solely on the credibility of S.V. and A.V. S.V. and A.V. had been impeached throughout the trial and had been shown to have reputations for untruthfulness. There were no physical signs to corroborate their testimony about the alleged rapes.” According to Justice Wiggins, the trial judge effectively handcuffed the defense by refusing to allow Mr. Perez-Valdez to introduce into evidence certain crucial evidence that would have shown a motive for lying about rape that might well have led to a different verdict.The Facts: Alberto Perez-Valdez, with his wife, adopted several children, including two girls identified in the court’s opinion only as A.V. and S.V. In December 2004, when the girls were 13 and 14 years old respectively, S.V. and A.V. both claimed that Perez-Valdez had sexually abused them over the course of several years, the last incident occurring in December 2004. S.V. testified that, from ages 10 through 13, Perez-Valdez fully penetrated her with his penis over 500 times without a condom. (In addition, S.V. stated that she had unprotected sex with her stepbrother, Jose, at least once a month over the same three year period.) A.V. testified that starting at age eight, Perez-Valdez had unprotected sex with her six to seven times per month for a period of six years. (A.V. also allegedly had unprotected sex with Jose "pretty often.") Neither girl became pregnant despite the alleged frequency of the rapes, and the physical evidence did not point to rape.

Mr. Perez-Valdez denied the allegations and testified at trial that he did not rape or otherwise sexually assault either S.V. or A.V. He claimed the girls were lying. Several witnesses testified about the reputation of the girls for untruthfulness. According to Justice Wiggins, A.V. had a reputation for being untruthful. With a straight face, A.V. would look school officials in the eye and tell them something that they knew was absolutely not true. S.V. testified that A.V. "didn't tell the truth a lot." Even A.V. stated that she "didn't have a good reputation [for being a truth-teller].”

Importantly, the girls knew that a sexual abuse allegation would get them removed from the home because, years earlier their younger sister, Ashley, was removed from the home because she alleged that Perez-Valdez had molested her. (After Ashley's removal, S.V. and A.V. repeatedly told authorities that Perez-Valdez had not sexually abused them. By the way, according to Justice Wiggins, testimony from Ashley's subsequent foster mom and aunt suggests that Ashley’s allegations were fabricated. Ashley continued her behavior of lies, threats, and manipulations after being placed in that foster home.)

The Excluded Evidence: Most critically, Mr. Perez-Valdez sought to introduce evidence that S.V. and A.V. committed arson at the subsequent foster home where they were placed. This evidence would show that the girls were willing to take extreme actions to be removed from homes where they did not like the rules, potentially including lying about rape. In order to lay the foundation for this, the defense presented evidence that the girls did not like some rules at the Perez-Valdez home, such as chores and dating restrictions. S.V. and A.V., having seen that allegations of sexual abuse resulted in their younger sister's removal from the Perez-Valdez house, fabricated these allegations, the defense claimed, so that they too would be removed. On at least one occasion, A.V. stated "that she would do whatever she needed to do to be out of the home, that she wanted to be returned to her, reunited with her birth mom."

The evidence that the girls committed arson at the home where they were placed buttresses that defense. One of the girls was asked about the arson; specifically, why she wanted to leave her foster home. Answer: "Because they would make me have to go to church with her all the time. And she was too much of a Christian."

Justice Wiggins wrote: "Jurors in child sex abuse cases naturally wonder, '[W]hy would the child lie?' The arson was relevant to show a motive for accusing Perez-Valdez of sexual abuse. Perez-Valdez reasoned that S.V. and A.V. would go to extreme measures to be removed from a living situation that they did not like. The alleged victims testified that they observed [younger sister] Ashley's removal from the home after Ashley accused Perez-Valdez of rape. There was also evidence that S.V. and A.V. set an arson fire in a subsequent foster home that resulted in their removal from that home. If they set fire to a home because they did not like going to church, they could just as easily fabricate allegations of rape to escape from onerous chores and restrictions on dating. The arson evidence was relevant to show motive, which casts doubt on S.V.'s and A.V.'s credibility as witnesses and makes their ac-counts less probable."

Given the weakness of the state's case, Justice Wiggins wrote: "If Perez-Valdez had been able to show that S.V. and A.V. were willing to set a house on fire to be removed from a living situation that they did not like, there is every reason to believe that the outcome of the trial might have been different."

"They are telling the truth": That's not the only disturbing thing that happened at the trial. The State called Karen Patton, the Child Protective Services (CPS) investigator assigned to this case, to testify at trial. During cross-examination, Patton stated her opinion about the victims' credibility. The testimony came in response to defense counsel's question during an exchange about the significance of S.V. and A.V.'s familiarity with their parents' bedroom:

"[Defense Counsel] Q. Are you telling me only children sexually abused would know what their mother and father's room looked like if they had been in there five, six, seven or eight years?

"[Patton] A. No, not at all ... . I'm saying these children knew what the parents' bedroom looked like, and in addition, they were in there several times being sexually abused by their father.

"Q. Assuming they are telling you the truth?

"A. They are telling me the truth."

Defense counsel immediately objected and moved for a mistrial. The trial court sustained the objection but rejected the request for a mistrial, saying, "I'm going to ask that the jury disregard her comment."

The jury returned a guilty verdict on both counts of second and third degree rape of a child. Under indeterminate sentencing for sex offenders, Mr. Perez-Valdez was sentenced to 136 months to life.

Appellate Court Rubber Stamps Trial Court: On appeal, the majority opinion did what the vast majority of appellate decisions do in criminal cases. They rubber stamped the trial court's decision, refusing to upset his evidentiary ruling that excluded the evidence of the girls' arson, even though, according to Justice Susan Owen, "another trial judge might well have admitted the same evidence . . . ."

The dissent, on the other hand, believed that the excluded evidence was important because it might have made the difference between sending an innocent man to prison for life or letting him go free.

According to official biography for Justice Susan Owens, who wrote the majority decision, she “is passionate about domestic violence issues that impact children.” See here. The author of the dissent, Justice Wiggins, is a former Army captain who attended law school on the G.I. bill. See here.